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Thursday, October 06, 2005

Street Harassment: The Failure of the Law to Protect Women

Although compiled by HollabackNYC’s legal team, this page is an informational resource, not legal advice. If you are considering legal action, contact an attorney who specializes in harassment law and who can advise you on the particulars of your case.

The law has historically failed to take seriously numerous issues affecting women’s lives, and street harassment is no exception. Although several legal remedies could potentially be employed to combat street harassment, the current state of the legal system makes success highly unlikely.

Judges, legislators, and other decision-makers—mostly male—have generally understood street harassment as a trivial occurrence and thus not within the proper scope of the law. In turn,even laws already on the books that prohibit intimidation and harassment are rarely interpreted to address the harms of street harassment experienced by women.The application of existing legal remedies to street harassment experienced by LGBTQ individuals is an even more remote possibility, although legislation prohibiting hate crimes and hate speech may provide additional recourse in these cases. For more information on this, click here.

Given the shortcomings of the law in this arena, a number of legal scholars and activists have suggested specific legal reforms that have yet to be implemented. For a thorough review of current legal concepts used against street harassment and their failures, as well as proposed remedies, see Cynthia Grant Bowman’s "Street Harassment and the Informal Ghettoization of Women,"published in the Harvard Law Review and available here.

Current Remedies and Their Failures

Currently, a number of legal tools exist to combat street harassment. While some of these have proved successful on occasion, none are an effective remedy in part due to factors described below. It should be noted, however, that there exists one particular area where women have been extended greater protection: common carriers (buses, trains, and other transportation forms) and hotel guest situations. Women may recover damages more readily if harassed by an employee—or even another patron—of a common carrier or hotel. More information on this follows below.

Criminal RemediesAlthough they do not provide monetary damage awards, criminal remedies include the advantage of an attorney provided by the state free of charge. However, the judges, state attorneys, and police officers responsible for criminal street harassment cases are the same personnel who have often notoriously failed to take seriously even cases of brutal sexual assault. Thus, women may be reluctant or unable to bring such cases in criminal court.

Potential criminal remedies include:

Assault

State statutes prohibiting harassment in public places. For New York’s statute, click here.

“Fighting words” statutes

Anti-stalking statutes

Civil Remedies

Civil remedies have the benefit of monetary compensation in the form of damages. If sufficiently large, such damages may provide a larger deterrent than criminal prosecution alone.

Potential civil remedies include:

Assault

Intentional infliction of emotional distress

Invasion of Privacy

Failures of Current Remedies

None of these remedies have yet been very useful in combating street harassment. This is in large part due to the effects of racism and sexism on the courts’ application of the law.

Race

Consider an early criminal case in which the North Carolina Supreme Court upheld the assault conviction of a black man who harassed a fifteen-year-old white girl on the street. In its decision, the court stated, “[a] negro man, using this foul indecent language towards a young white girl, as a matter of common knowledge, would create apprehension and fear.”State v. Williams, 120 S.E. 224, 228 (N.C. 1923).

However, courts have been willing to react quite differently when the harasser is white and the targeted woman is black. In one New York criminal harassment case, the defendant, described by the court as a“lone white suburban male,” backed his “expensive foreign car” along a curb at 3 a.m. and solicited three black women he allegedly believed to be prostitutes. Harassment charges against him were dismissed, though, on the grounds that it was not his intent to annoy, but only to seek “female companionship.” This decision neatly dovetails with the common racist stereotypes regarding the sexual promiscuity and accessibility of women of color.

Sexism and the "Reasonable Man" Standard

New York, like a number of states, actually has a statute that specifically prohibits harassment. According to the court in the above case, however, although the man’s behavior might technically be prohibited by the statute, the statute must be read as barring only “‘language or conduct . . . by its nature . . . of a sort that is a substantial interference with (our old friend) the reasonable man.’”People v. Malausky, 485 N.Y.S.2d 925, 927-28 (Rochester City Ct. 1985).

This is known as the “reasonable man standard,” a legal decision-making approach in which the court asks how a reasonable man would act under the circumstances. Although today the terminology has been altered to “reasonable person,” decision-makers nevertheless often ignore the experiences of women and other historically subordinated groups in applying this standard.

In this case, for instance, the court felt that “a reasonable man” would not consider the solicitation to prostitution by a wealthy white man on the street at night a substantial interference for a black woman. The court’s old friend “the reasonable man” is clearly no friend of ours. This case illustrates the sexist fashion in which the reasonable man standard (as well as the revised reasonable person standard) is likely to be applied by a mostly male judiciary, and the race and class biases ubiquitous in the enforcement of anti-harassment statutes.

Street Harassment as Trivial

There exist very few reported street harassment cases in which convictions have been upheld. As a dissenting judge in one of these rare examples indicated, it seems to be the pervasiveness of street harassment that contributes to its neglect by the law. Referring to the fact that women are frequently assaulted with catcalls and sexual suggestions, he asserted that a mere indecent request was insufficient to violate the anti-harassment statute in question. Commonwealth v. Duncan, 363 A.2d 803, 804-05 (Pa. Super. Ct. 1976). He also felt it would be unwise to criminalize such behavior because: “(1) the state runs the risk of criminalizing generally accepted behavior, leaving the actor without reasonable notice that his conduct is criminal; (2) such incidents are too frequent for a justice system to handle them efficiently; (3) courts cannot be expected to arbitrate what are frequently personal disputes by use of the criminal process.”Duncan at 804-05. Since street harassment is so widespread and generally regarded as trivial, this judge feels that there is no reason to do anything about it legally.

The same attitudes that permit and foster street harassment in the first place thus also permeate the legal system, creating a serious impediment to the successful use of any existing remedies against street harassment. Take for example the civil remedy of “intentional infliction of emotional distress, which is defined as “extreme and outrageous conduct [that] intentionally or recklessly causes severe emotional distress to another,”Restatement (Second) of Torts. Street harassment as experienced by countless women clearly fits this definition, yet there are few reported cases in which this remedy has been successfully used in a street harassment context. Much of the difficulty lies in establishing street harassment constitutes “extreme and outrageous conduct.” After all, if street harassment was generally regarded as “extreme and outrageous,” it wouldn’t present such an omnipresent problem.

However, common carriers and hotels have a higher responsibility for the actions of their employees and, in some cases, even their patrons if the company in question was required to train employees to intervene in harassment situations. Thus, when a special relationship exists between the woman and defendant—such as guest and hotel, or passenger and common carrier— establishing liability involves proving only that the conduct was “gross” rather than “extreme and outrageous.”

This lower standard has enabled women to obtain damages from companies for the actions of their employees and patrons in some situations. Yet, as long as courts continue to view street harassment through a lens of complacency distorted by racist and sexist presumptions, legal redress will be difficult to obtain for most of those forced to endure such harassment.